LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 39
the executive and legislature have at their disposal expertise and
information, the solutions that they come up with may not be ones
tested against real conflicts. The solutions may fail to address some
problems that may not have been anticipated when, for instance,
legislation was adopted. 114 It is when such problems arise that the
courts’ expertise kicks in. It is on this basis that it is submitted that in
structural reform litigation, the circumstances compelling the courts
to intervene do not arise from a desire to take action in conflict with
affirmative legislative and executive programmes. Rather, the
circumstances are created by the deficit brought about by legislative
and executive inaction or neglect. 115 The legislature and executive
could have come up with and stuck on solutions that in practice do not
realise the rights protected.
In such a case, the courts may redirect policy, legislation or
conduct in order to align them with the constitution and to solve reallife
problems. 116 When the courts do this, they will not be intruding
on the territory of either the legislature or the executive. Instead, the
courts will be establishing a dialogue between themselves and the
other branches in terms of which each branch is expected to
contribute its special skills in solving the problem. 117 Additionally,
there is nothing that stops the courts from availing themselves of
technical expertise through expert evidence. The courts could
114 See Scott & Macklem (n 9 above) 37. They submitted that petitions have the
effect of drawing attention to personal circumstances that reveal failures and
problems unknown to or avoided by those responsible for drafting legislation.
According to Scott & Macklem, such failures and problems may not have been
predicted by, or may remain hidden from the view of, legislators or bureaucrats
who live a more privileged life than those claiming the benefit of constitutionallyentrenched
social rights, and who are not institutionally required to listen to
individual stories to produce a bridge between life experiences. In their opinion,
this applies whether the body is the government, a legislative committee, or an
international monitoring institution.
115 T Eisenberg & S Yeazell ‘The ordinary and the extraordinary in institutional
litigation’ (1980) 93 Harvard Law Review 465 495-496. Eisenberg and Yeazell
submit that there is nothing that suggests that regulating public institutions is a
task so clearly and exclusively allocated to the legislative and executive branches
that judicial action is unwarranted even in the face of recalcitrance by other
government actors. Horowitz (n 20 above) 24, however, submits that there is no
institution that can do everything and that while this may be justification for
intervention by the courts into policy matters, there is no guarantee that the
judiciary’s action will proceed from proper diagnosis or that it will not be
deflected in the course of executing the functions.
116
S Sturm ‘A normative theory of public law remedies’ (1991) 79 Georgetown Law
Journal 1355 1387-1388.
117 M Wesson ‘Grootboom and beyond: Reassessing the socio-economic jurisprudence
of the South African Constitutional Court’ (2004) 20 South African Journal on
Human Rights 284 295 307.